IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20230003033 APPLICANT REQUESTS: 1. Reconsideration of Army Board for Correction of Military Records (ABCMR) Docket Number AR20090001576 wherein he requested reinstatement of his rank. 2. As a new request, the applicant requests that he be considered for retirement due to the fact that he would have retired in 2022. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Congress of the U.S. letter, 4 May 2022 * Form W-2c (Corrected Wage and Tax Statement) * Leave and Earnings Statements (LES) * Case Number * Self-authored letter * Department of the Treasury - Notice of Intent to Initiate Administrative Wage Garnishment Proceedings, 2 July 2014 * Army Review Boards Agency letter, 23 June 2017 * Self-authored letter, 6 May 2016 * Defense Finance and Accounting Service (DFAS) letter, 26 February 2013 * U.S. Senate letter * DFAS letter, 26 February 2018 * DFAS letter, 26 March 2016 * Department of Veterans Affairs letter, 24 October 2014 * Marriage Certificate * Divorce Degree * Character Reference letters * LES * Financial Spreadsheet * Memorandum – Subject: Retention on Active Duty for Courts Martial and supporting documents FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090001576 on 23 June 2009. 2. The applicant states in pertinent part that he served in Germany from 2002-2009. While in Germany he married a local national (2004) through the local court system. He remained married until May 2007 when the State of Pennsylvania awarded his divorce decree. He notes that although the State of Pennsylvania recognized the dissolution of his marriage, he was advised that this was not acknowledged in Germany. As such, he was still financially responsible for his former wife and her daughter until the case was final in Germany. a. He departed Germany in 2009. His divorce proceedings remained unresolved in Germany. Upon arriving at his follow-on duty station (Fort Riley, KS) in October 2009, he obtained off post housing because of his marital status. b. In September 2012, he was remarried to his current wife. Shortly after being remarried, court martial proceedings were initiated alleging financial fraud between 2007-2012. During the pretrial proceedings, he was advised his divorce was final following his departure from Germany. He contests that this was the first time he was made aware of this action. At the conclusion of his court martial he was sentenced to 3 months imprisonment and discharged as a private (PVT)/E-1. He argues he was unaware of a financial liability in excess of $130,000.00. He was advised by a member of the finance office during the mediation of his dispute of this debt that he should have been required to reimburse the difference between the married and single Basic Allowance Housing (BAH) rate which was roughly $200.00-$250.00 during that time. c. He has since filed for bankruptcy under Chapter 7. He believes that his rank should be restored because the calculations utilized by DFAS were incorrect. In fact, he contests that the monies taken from him between May – September, to include additional entitlements should be refunded to him. This action has not occurred. His argument is further provided in its entirety within the supporting documents for the Board's review. 3. A review of the applicant's available service records reflects the following: a. On 6 July 2001, the applicant enlisted in the Regular Army. b. On 11 May 2004, the applicant was married in Germany. c. On 1 October 2005, the applicant was promoted to the rank/grade of sergeant (SGT)/E-5. d. On 18 May 2007, the applicant was divorced as legally recognized by the State of. e. On 13 September 2012, the applicant was remarried and subsequently requested entitlement to BAH at the with dependent rate. f. On or about 28 May 2013, the applicant was reduced to the rank of PVT. g. On 6 August 2013, the Department of the Army Headquarters, Fort Riley issued General Court Martial Order Number 9 reflective of the applicant being found guilty of violating Article 121 (Larceny and Wrongful Appropriation) in that between on or about 16 January 2008 – 31 August 2012, the applicant received military allowances/property of a value of more than $500.00. The applicant's sentence was previously adjudged on 14 May 2013 in that he would be reduced to the pay grade of E-1 and confined for 10 months; his confinement was reduced to 3 months. h. On 22 August 2013, Headquarters, 1st Infantry Division and Fort Riley issued Orders Number 234-0017 reassigning the applicant to the U.S. Army transition point pending discharge. The applicant's rank is listed as "SGT." i. On 12 September 2013, Headquarters, 1st Infantry Division and Fort Riley issued Orders Number 255-0026 amending Orders Number 234-0017 to reflect the applicant's rank as "PVT/E-1." j. On 15 September 2013, the applicant was honorably discharged from active duty at the rank of PVT/E-1, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) Chapter 4 (Expiration of Enlistment/Completion of Required Active Service). DD Form 214, item 29 (Dates of Time Lost During this Period) reflects 14 May 2013 - 27 July 2013. Item 26 (Separation Code) shows "KBK" and item 27 (Reentry Code) shows "3." He completed 11 years, 11 months, and 26 days of net active service. k. The applicant's records are void of any documents associated with the initiation of a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB). 4. The applicant provides: a. Congress of the U.S. letter dated 4 May 2022, reflective of the applicant being notified that a corrected 2013 W-2 Form was being provided. b. Form W-2c reflective of changes made to the previously issued W-2. Upon review noted are the reductions in the applicant's wages previously reported i.e. previously reported as $120,646.15 but changed to reflect $19,290.16. This change impacted all other calculations that were previously based on the original amount. c. LES reflective of the applicant's pay and entitlements between October - December 2012 at the rank of SGT. During this period the applicant received BAH entitlements at the married, with dependents rate. In October 2012, the applicant's entitlements were reduced by $10,604.86 (Basic Allowance Substance), $44,832.92 (Basic Allowance Housing). In the remarks section the applicant's total indebtedness reflects $111,102.74. d. Case Number reflective of the applicant's bankruptcy case being ordered, adjudged, and decreed on 14 December 2015. The applicant's debt was reduced from $50,606.00, minus $15,606.00 previously paid, resulting in a remaining balance of $35,000.00. This document is further provided in its entirety within the supporting documents for the board's review. e. Self-authored letter reflective of the applicant disputing the income amount ($120,000.00/5.5 year's salary amount) indicated on his 2013 W-2. The applicant contests that this was in relation to his court martial proceedings wherein he was sentenced to 10 months; reduced to 90 days for unfair treatment. The applicant was required to repay $2,800.00 per month which prompted him to file for bankruptcy. The applicant further adds that during mediation proceedings with the military, the finance office noted a discrepancy in the previous debt calculations reducing the amount owed $50,606.00 less the amount that earned ($15,606.00) resulting in a balance of $35,000.00 of which $10,000.00 is in escrow with the law firm until the W-2 correction is implemented. f. Department of the Treasury - Notice of Intent to Initiate Administrative Wage Garnishment Proceedings dated 2 July 2014, reflective of the applicant being notified of the intent to collect a $130,276.44 debt reported by DFAS. g. Army Review Boards Agency letter dated 23 June 2017, reflective of the applicant being informed that his submitted request for relief was being returned without action. The applicant was redirected to DFAS to have his W-2 issues addressed. h. Self-authored letter dated 6 May 2016 reflective of the applicant's contention with the information reflected on his 2013 W-2. The applicant restates the information previously provided in 4e. above and further provided in its entirety within the supporting documents for the Board's review. i. DFAS letter dated 26 February 2013, reflective of the applicant being informed of a remaining debt balance $1,146.73. j. U.S. Senate letter, reflective of the applicant being advised of the response received from DFAS on 26 February 2013 provided in 4i. above. k. DFAS letter dated 26 February 2018, reflective of communication provided to the applicant wherein he was advised that the debt amount of $101,578.43, remains valid, plus the added interest, penalties and administrative fees totaling $4,172.38. Payments of $962.31 were applied and the bankruptcy court adjustment of $50,972.43 was implemented leaving a remaining balance due of $53,816.07. In accordance with the Internal Revenue Service (IRS) Publication 15, Circular E, the applicant's debt is considered income and therefore, it must be reported as federal wages for the 2013 tax year. Since the tax information reported on his 2013 Wage and Tax Statement is correct, a W-2c would not be issued. l. DFAS letter dated 26 March 2016, reflective of the applicant being advised that as a result of his approved bankruptcy, the initiated collection would be terminated, and he would be further released from all dischargeable debts. m. Department of Veterans Affairs letter dated 24 October 2014, reflective of the applicant being advised that he was previously paid entitlements that he was not entitled to. Therefore, he was required to repay a balance of $789.45. n. Marriage Certificate, reflective of the applicant being married on or about 5 November 2004, in Baumholder Germany. o. Divorce Degree, reflective of the applicant being legally divorced on 18 May 2007. p. Character Reference letters, reflective of letters of support and or request for leniency associated with the applicant's pending discharge in 2013 as provided by members of the applicant's immediate leadership to include his platoon sergeant and first sergeant. Each of these letters address the applicant's work ethic, knowledge and experience as a noncommissioned officer. These letters are further provided in their entirety within the supporting documents for the Board's review. q. LES reflective of the applicant's pay and entitlements during various periods of service occurring between September 2007 and June 2013. These documents are further provided in their entirety within the supporting documents for the Board's review. r. Financial Spreadsheet reflective of the applicant's calculated entitlements between May 2007 and August 2012, broken down by year. These documents are further provided in their entirety within the supporting documents for the Board's review. s. Memorandum – Subject: Retention on Active Duty for Courts Martial and supporting documents reflective of the applicant being retained on active duty for the purpose of completing his court-martial proceedings. Contained within is also documentation of his orders for confinement and information pertaining to the forfeiture of his pay entitlements while confined due to not being in a full duty status past his expiration term of service date. 5. On 23 June 2009, Docket Number AR20090001576 the Board determined that there was insufficient evidence to show that his reduction from SGT to PVT was harsh or unjust. Further the evidence presented did not demonstrate the existence of a probable error or injustice. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board found insufficient evidence of mitigating circumstances that would excuse the applicant’s receipt of overpayment of housing allowances for several years. The Board found the court-martial sentence to reduction to the lowest enlisted pay grade was not overly harsh considering the scope of his misconduct. The Board determined the pay grade the applicant held upon discharge was not in error or unjust. 3. The Board found no evidence that would support a recommendation to correct the record to show the applicant was retired. The Board determined the applicant’s discharge in 2013 by reason of completion of required active service was not in error or unjust. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation) Paragraph 4-3f (2) provides that Soldiers under processing for an administrative separation for misconduct remain eligible to be referred to the MEB. The Soldier's commander must notify the Soldier's Physical Evaluation Board Liaison Officer (PEBLO) in writing that administrative separation action has been initiated. The Soldier's completed MEB must be referred to the Soldier's General Court-Martial Convening Authority (GCMCA) in accordance with AR 635–200 to determine whether the Soldier will be referred to the PEB. Approval and suspension of an AR 635–200 separation action is not authorized when the Soldier is pending both an AR 635–200 and AR 635– 40 action. The GCMCA must decide which action to pursue (as described in AR 635– 200). Soldiers continue to be eligible for these administrative separation actions up until the day of their separation or retirement for disability even though their PEB findings have been previously completed and approved by USAPDA for the SECARMY. In no case will a Soldier, being processed for an administrative separation for misconduct be discharged through the DES process without the approval of the GCMCA. a. Chapter 4 (Separation for Expiration of Service Obligation) provides that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Personnel who are physically unfit for retention but who were accepted for, or continued in, military service per AR 635-40 will not be separated because of ETS unless processing for separation because of physical disability is waived. b. Paragraph 4-27 provides that permanent disability retirement is directed under 10 USC 1201 or 10 USC 1204, as applicable, when the Soldier is determined unfit for continued service and has a compensable disability in accordance with the standards of this regulation, and: * the disabilities are permanent and stable, or the disability rating will not improve to less than 80 percent * the Soldier has at least 20 years of service as computed under 10 USC 1208 * the Soldier has a combined disability rating of at least 30 percent 2. AR 600-8-19 (Enlisted Promotions and Reductions) Chapter 3 (Semi-Centralized Promotions (Sergeant and Staff Sergeant) provides that field grade commanders of any unit authorized a commander in the rank of lieutenant colonel or above may promote an enlisted Soldier to the rank of SGT or SSG. 3. AR 27-10 (Military Justice) provides that any commander is authorized to exercise the disciplinary powers conferred by UCMJ, Article 15. Regarding reductions in grade, the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of UCMJ, Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade. 4. AR 15-185 (ABCMR) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003033 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1